38 F. 789 -

38 F1d 789

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Case Text

WILSON fl. FINE.

789

and in favor of the intervenor, directing Mr. Charles Dillingham, receiver of the Houston & Texas Central Railway Company, to pay to intervenor, in of his damages as aforesaid, the sum oU7,172.55, and for all costs.

WILSON 11. FINE.

(DiBtriot Oourt, D. Oregon. May 20, 1889.)

1.

,. 2,

EJ"ECTMENT-MAY Bll: MAINTAINED ON PRIOR POSSESSION.

Prior possession of .real property is a sufficient legal estate therelll t'o enable a party to maintain ejectment in this court for the recovery of the posses/lion of the same from an intruder.

SAME-JURISDICTION OF FEDERAL COURTS.

An action to recover the possession of real property is none the less an action at law because the legislature of the state wherein the property is situate has provided that the same may be maintained, as against' an'intruder,on the certificate of a register and receiver, or other evidence oftitIe to, orinterest in the premises; short of a patent from the United States: and under section 914 of the Revised Statutes the same may be maintained In the national court sitting in such slate.

A copy ,of a complaint served with the summons, is sulficient. although the subscription of the attotney thereto, is omitted. . . , (Syllabu8 by 'tits Oourt.)

eounty,Or. ' It was commenced on February 27, 1889, and on April 5th the defeJ;ldant appeared specially, and moved to set aside the service of the summons, because he had not been served with a copy of the complaint, as required by section 55 of the Compilation of 1887, which provides: "The summons shall be served by. delivering a copy thereof. together with .Ii copy of the complaint. prepa,red and certified by the plaintiff lie lie lie or by the county ·clerk." , On the h,earing of the motion it appeared that the defendant had been Served with what purported to be a copy of the complaint, prepared and .certified by the clerk of this court, which did not contain 'the snbscription of the plaintiff' or his attorney. ' " 'The court denied the motion, saying that,'as a copy was only required be served for the purpose of apprising the defendant of the natnre the of action ;;tgainst hhn,the pf

790

FEDERAL REPORTER,vol.

38.

I

the 'complaint by theplaintiff or his attorney, is,for such purpose, not a material part of the complaint. OriMay' 8, 1889, an amended complaint was filed, from which it appears that the plaintiff is a citizen of California and the defendant of Ore· gon; that the premises were "duly certified by final certificate to one G. C. Alexander, by the proper officers of the land department of the United States under the homestead laws of the same;" that thereafter the said to the plaintiff, who "is now the Alexander duly conveyed the owner in fee-simple" of the premises, and entitled to the possession thereof; that about January 1, 1889, the plaintiff was in possession of the premises as such owner, when "the defendant unlawfully and with force eijtered upon the same, and ejected the plaintiff therefrom, and has ever since, wrongfully, withheld the possession thereof from the plaintiff." To this complaint the defendant demurs, for that the same "does not state facts sufficient to constitute a cauRe of action.)l On the argument the only point JIlade in support of the demurrer was that it appears from the complaint the plaintiff has not the legal 'title to the premises, the same being: presumably in the United States, and therefore cannot maintain this actiontorvcover possession of the same; citing Langdon v. Sherwood, 124 U. S. 74, 8 Sup. Ct. Rep. 429, and caSeS there referred to. In reply, counsel for the plaintiff contends that an action to' recover the possession of real property may be maintained on a prior possession against a mere intruder or trespasser, such as the defendant appears to be; citing Ohristy v. Scott, 1.4 How. 282, and cases there referred,to. In the case cited by counsel for,the demurrer the plaintiff sought to maintain ejectment for certain lands in Nebraska as the mere assignee of at a certificate of purchase of the same, issued by the local Omaha. It does not appear that he had been in the possession of the premises, or been disseised thereof. By the law of Nebraska such certificate is made equivalent to a patent as proof of title against any on,e but the holder of the patent. But, notwithstanding this, the court' held that ejectment cannot be maintained in the courts ofthe United States for the possession of lands in that state or elsewhere on such evidence. IIi support of this conclusion, the court cited BagneU v.' Broderick, 13 Pet. 436; Penn v. H(}lrne, 21 How. 481; Horyper v. Scheimer, 23 How. 235; and Poster v. Mara, 98U. S. 425. In BagneU v. Broderick,7acase which came up from Missouri, where the legislature had enacted that ejectment might be maintained ona New Madrid location,-the court held that the holder of a patent from the in the courts of the United States United States could maintain agaimlt an occupant claiming under'such location. , the partybavThe effect of this decision is 'simply that, ing ,the highest evidence of the legal title must pi-evail,-that thepatimt of the United States, of title, was superior to that of the location; and upon this, point there' can be but one opInion. The court divided on the question whether Bagnell, the occupant under the New

WILSON V. FINE.

791

chasers of lands from· the United States toprosecllte actions of ejectment upon certificates of purchase against trespassers on the lands purchased; but we deny that the have any power to declare certificates of purchase of eq ual dignity witb, a patent.CQngressalone can give them such effect."

Madrid location; could show in the actfon at law that the patent was issued to another in fraud of his rights, the majority holding that he could not,", Yet Mr. Justice CATRON, in speaking for the majority, said: "Nor do we doubt the power of the states to pass laws authorizing' pur-

Fenn v. Holme was an action brought on a New Madrid location, which had neither been surveyed nor approved. Hooper v. Scheimerwae an action brought on an entry with the register and receiver to recover possession of certain lots in Little Rock, Ark., which the state had declared was sufficient evidence of title to support ejectment. The defendant claimed under a patent from the United States, which, appearing valid on its face, the court held could not be 'contradicted .or overcome by· evidence aUt/IfI,de, and must therefore prevail against the certificate of purchase. In delivering the opinion of the court in the 1«tter case, Mr. Justice CATRON said that ejectment cannot be maintained in the national courts again!\t "a defendant in possession"on an entry made with a. register and receiver; and Mr. Justice DANmL said, in Fenn v. Holme, without qualification, that the plaintiff in ejectment cannot recover in ejectment without the legal title,...,.,..the complete title. He 8eems to have labored under the impression that ,to allow the action to be maintained without ,such titlewdUld in some way destroy the distinction between actions at law and 'suits in ,equity,i contrary to the constitution and laws of the United States. ' 13rit in this he was certainly mistaken. Foster v. Mfwawas an action brougbt by a person claiming title to the Mission San:Juan Capistrano under a patent from the United States, to recover possession bE the same from parties who claimed under a confirmed Mexican grant, on which a patent had not been issued. The court simply held that the legal title, as evidenced by the patent, must prevail, and, if there were any equities in the case, they could only be considered on the equity side of the court. . Now, there ,is neither decision nor dictum, unless it be that of Mr. Jus.tice DANIRLi in any of these cases against the right to maintain ejectment in any common.law court, state or national, on a prior possession, against a mere inttuuer ortrespasser,· whether suehpossession is claimed or held in pursuance of Ii. purchase from the United. States, on which a patent has not ytitissued, or Nor can I see, (and I say it with due deference,) if a state provides that ejectment...,.-an action at law to recover the possession of real property .wrongfully withheld. from the plaintiff therem-may be maintained on "any evidence of title to or interest in the premises from mere priOl' possession, to a patent under the seal of the United States, which shows a present right i11 the plaintiff to the possession, as against the defendant, .,how the· Clbaracter. of the action· ,is thereby changed, or confounded or 'blended with a. suit in equity.

792

FEDERAL

REPORTER,

vol. 38.

An action atlawis the acknowledged remedy for the rp.covery of the possession of real property wrongfully withheld from the plaintiff, or to recover damages for a trespass thereon; while a suit in equity is the proper rem"edy to compel a conveyance thereof, when wrongfully refused, or to establish or enforce a trust therein. If the legislature provides that the former may be maintained -on any interest in the premises or right thereto short of the strict legal title, from which it appears that the plaintiff is legally entitled to the possession, as against the defendant, it is none the less an action at law, and in no sense a suit in equity. It is still a legal remedy for the redress of a wrong to a legal right,-the right of possession. And under section 914 of the Revised Statutes, which conforms "the practice, pleadings, and modes of proceeding" in such cases in the national courts to those in the state courts, "as near as may be," such state law will furnish the test of when and by whom such an action can be maintained. Of course, the state cannot say, even in its own courts, that a mere entry or certificate of purchase shall prevail as evidence of title over a patent valid on its face. Such a law would, in my judgment, interfere with the exercise ofthe power to dispose of the public lands in an orderly and effective manner. But the state may provide, as Mr. Justice McLEAN says in his dissenting opinion in BagneU v. Broderick, 13 Pet. 453, that it may be shown in such case that the patent was fraudulentlyobtained, and is therefore null and void. But this digression has already gone quite far enough. be maintained The question in this case is simply this: in this court on a prior possession against an intruder or trespasser? The law of the state is (section 316, Compo 1887) that "any person who has a legal estate in real property, and a present right to the possession thereof, may recover such possession, with damages for withholding the same, by an action at law." This is substantially the common.law action of ejectment, minus its once useful fictions; and, as I understand the law, is, by virtue of section 914 of the Revised Statutes, the rule of procedure in this court. Possession or actual occupation of real property is in some degree a title to or estate therein. Blackstone, in his consideration of the titles to land, gives" naked possession" as the. first. 2 Bl. Comm. 195. And possession by the vendor is a sufficient interest in lands to carry the covenants in his deed to his assignee. Fields V. Squires, 1 Deady, 388, and the cases there cited. 2 Watlhb. Real Prop. 493. In Whitney v. Wright, 15 Wend. 179, it was held in the language of the syllabus: .. A prior pOSsession Is sufficient to entitle a party to recover in an action of ejectment against a mere inb'uder or wrong-doer, or a person subsequently entering without lawful right, if the action ... ... ... be brought within a reasonable ti!De." In Jackson V. Railway Corp., 1 Cush. 575, iUs said that"If A. enters on-the land of B., and takes possession. and afterwards C. enters on A. and disposesses him, A. may well maintain an action against to

WILSO.N

v. .FINE.

recover possession, although his entry on B. was without right, and for mere possession is a good title against a stranger having no title." In (Jhristy v. Scott, 14 282, the supreme court held in the language of the syllabus: ' "A mere intruder cannot enter upon a person seised, eject him, and, when sued, questiQn his title, or set up an outstanding title in another. The prior peaceable possession of the plaintiff is enough to enable him to recover in ejectment against one having no title." The case came up from Texas. The plaintiff alleged that he was seised -possessed---'"of certain real property, and that the defendant forcibly ejected him therefrom, and kept him out of possession. The defendant answered that the plaintiff claimed under a certain grant, which he al· leged was illegal. On demurrer, the court held this to be no defense to the action. In disposing of the question; Mr. Justice CURTIS, who delivered the opinion of the court, said: "According to the settled principles of the common law, this is not a de. fense to tbeaction. The plalhtiff says he was seised in fee, and the defend· ant ejected him from the possession. The defendant, not denying this, anthat if the plaintiff had any paper title, it was under a certain grant which was not valid. He shows no title Whatever in himself. But a lDere intruder cannot enter on a. person actually seised, and eject him, and then question his title, or set up an outstanding title in another. The maxim that the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's, is applicable to all actions for the recovery of property. But if the plaintiff bad actual prior possession, of the land, this is 8trong enough to enable him to recover it from a lDere trespasser. who entered Without any title." . The seizure or possession of the plaintiff in this case is not that of a. mere squatter or temporary occupant of the public lands. He is the vendee and al1Signee of a recognized settler on the premises under the homestead law of the United States, to whom an official certificate was issued to the effect that he had complied with the law, and was entitled to a The plaintiff is the beneficial owner of the property; and was in the possession of the same when the defendant entered without title or right. Such a possession is sufficient, according to the rules of the common law and the statute of this state governing the procedure in this court, to the plaintiff'to maintain this action against an intruder, as this defendant appears to be. Indeed, it would be 8 serious reproach to the administration of justice, ifa citizen of another state was without rem. edy in this court for such a barefaced trespass and wrong. The demurrer is overruled.

794'

FEDERAL BlllPORtER,

vol. 38.

SERVIS

v.

MARSH.

«(Ji'l'cuit OO'U'I't, No D. lllinoia.

May 25,1889.)

1.

ESCAPJlI--:-UNI'l'ED STATES

2.

SAME-DEPUTIES.

The common-law rule that a sheriff is liable to " judgment creditor to the amount of the judgment, for a voluntary escape of the defendant, who is in the sheriff's custody under cap. ad Bat., which is of force in'Illinois, is appli· cable to United States marshals for that state
., . ... ,

Where the prisoner is in custody of a deputy-marshal, by direction of the marshal, an escape by consent of the deputy is within the rule. 8.SAME-SURRENDER.,

It is no defense to an the marshal for such escape that the prisoner, aftllr escaping, voluntarily surrendered, and that plaintiff thereafter paid for his keeping. where it appears that plaintiff did not then know of the ' escape.

.

<.

At Law. Case submitted on agreed statement. . This cas6w,as submitted for trial before the court upon the following stipulation of fa.cts: ,
For the pUt'pOSE! of obviating thedE!lay and trouble of bringing witnesses into court, it IS hereby mutually stipulated and agreed by and between the parties to this8uit, through their' 'respective llittorneys, that the following statement of facts is to be taken and' considered by the court as agreed upon for the determination of this case: ' (1) That on April IS, A. D. 1884, -in the circuit court of the United States for the Northern district of Illinois, theJplaintiff recovered a judgment in an ilction for a tort against H. M. Ryan', Charles A. Harper, and Horace N. Harris for $3,498 damages and $57.10 costs, and that the same has never been ra"ereed, set aside, or paid in whole or in part. (2) That a writ of capias ad satiUa,cjertdum was duly is/1ued .out Of said court onsaid jUdgment by the clerk of court, under seal, September 15, 1885, and on the same day said writ was delivered to the said defendant, then United States marshal for the Northern district of Illinois, to be executed by him accoruingto'law. (8) That on the 15th day of. 8eptel:nber, A. D. 1885,. the defendant, l\s United States marshal, received.the said writ, and on the 18th and 19th days of the same month executed the said writ according to law and the command therein by taking and arresting the said Charles A. Harper and saId Horace N. Harris, relipectivefy, and delivering them into the jail of Cook county. into the custody of the sheriff of Cook county, in said dist.rict, for safe-keeping, and made due return upon said writ to that. effect. . . .The plaintiff makes no claim under the, count of. hill declaration. (4) That for, during, .and until about the 11th day of October, the defendant kept and retained the said Harper and. the said garris imprisoqed 'in the said Cook county jail, under and by virtue of the said writ. (5) That all fees due defendant as marshal were dulj paid; alsO, the weekly board for dietinK the said Harper and Harris in said Cook county jail was duly paid by the plaintiff, as reqUired by law, up to and until the 20th day of October, 1886. (6) That on or about the 11th day of October, A. D. 1886, while the said Harper and Harris were so under arrest and so in said Cook county jail, it became the duty of the said defendant, as United States marshal, to take said Harper and Harris out of the jail of Cook county, and to take them before a United States commissioner, on an application made by them for their dis-

'SERVIS V. MARSH.

795

charge. :then pending. To perform this duty the said .defendant sent one E. S. Davis. his Q.eputy United States marshal. to take said prisoners from the said jail, and bJ;ing them before said commissioner. And while they were thus taken out of the jail. and in the charge of the said deputy, by the consent and permis9ionof the said deputy, but Without the actual knowledge of the said defendant. they went at large. out of the custody and charge of tbe said deputy, wherevel' they would, and eachwe.nt, unattended by said or anyone, to his respective home, and there Harris for the space of !\ix hours. ana the said Harper for the space of two days. The defendant. on being informed by another of his deputies that the said Harper was out of the jail, immediately sent for said deputy. Davis, and ordered him to retake said Harper into custody; the said Harris having pdor thereto voluntarily returned into said jail; and the said Harper, upon the request of the saia deputy, Davis·. at once returned into said jail; both said prisoners thereafter remaining in said jail a considerable period of time, and until their release as hereinafter set forth, The plaintiff admits the facts of the alleged escape to be as above stated, but insists that the fact that the said Harper and Harris were permitted to go at large by said deputy United States marshal is immaterial, and that thll defl'ndant. as marshal, is as fully and ill all respects as reo sponsible for and bound by the acts of said deputy in the premises as though the said actl;l'were done by himself in person; and the above fltipulation as to the fl).ct that ,the acts complained of were done by the deputy is to be treated as if evi<lence showing the same were offered in evidence on the trial by said· Marsh, .and objected to by plaintiff. (7) That thepJaintiff, having no personal knowledge that the said Harper and the aaid Harris had beenperroitted to go at large, out of the custody and C'Ontrol Of the defendant, as aforesaid. continued to pay the weekly board and dieting both said Harper and said Hanis up to the 3d day of December. 1886. (8) That the plaintiff. on the 3d day of December, 1886. notified the defendantthat he would not pay the weekly board and dieting of the said Harper or Harris any further, but would hold him as for a voluntary escape of the said Harper and Hanis. . (9) That on the 3d day of December. 1886. after the giving to the marshal of the notice last mentioned, the sai(l Harper and the said Harris were let out of the Cook county jail by the jailer; notice that the weekly board due. and by law payable in advance by the said judgment creditor, for the dieting of said Harper and Harris, had not been paid. first having been given to said defend· ant by the jailer of said Cook county. (10) "That the plaintiff, prior to the commencement of this suit, had paid to said defendant, as his marshal's fees in and about the service of said writ, $13.50, and to the jailer of the said Cook ('onnty jail the further sum of $448 in the wel'kly board and dieting of said Harper and said HarriS. being fOI' 64 weeks, each at $3.50 pel' week for each in advance. while they were so detained in said jail. (11) Neither before. at. nor after the time when the said defendants in ex eeution. Harper and Harris. respectively. wl're allowed by said deputy to go. to their respective homes, as hereinbefore stated, was either the said Harris or the said Harper posse3sed of tangible or known goods, chattels, moneys, or p.roperty subject to be taken in execution. in payment or satisfaction of the demand against them under whieh they were imprisoned as aforesaid. 13ut the above matter mentioned in ttJis item is ol>jected to by the plaintiff as immaterial. on the ground that the solvency or insolvency of the sllid Harper and Harris, respectively. is entirely immaterial. S. K. DCYW, for plaintiff. . W.· P. Black, for defendant.

796

FEDERAL REPORTER,

vol. 38.

J. The agreed facts this case squarely within the rule of the common law that if a defendant, when taken inexecution, is seen at large for ever so short a time, it is an escape which will make the sheriff liable to the plaintiff for the amount of the debt. It is the duty of the sheriff or marshal to obey tht: writ, and the writ commands him to take the defendant, and him safely keep, so that he may have him ready to satisfy the plaintiff.'rhis is the rule in case of a voluntary or willful escape from arrest on final process. In arrest upon mesne pro:' cess the rule is different; and, if the sheriff brings in the body on the day of the return, it is sufficient. But in arrest upon final process of execution he inust have the body ready at all times to be produced before the court; and if he do not, but voluntarily suffer the prisoner to depart out of his control for never so brief a time, he cannot retake him, but makes himself personally liable to the plaintiff for his debt and costs. It is contended by defendant's counsel that the common law has never been made applicable to United States marshals, and so does not apply to the case. But I think this a mistaken view. It is true that congress has never adopted the common law; bqt this is not essential. I take it that, in the absence of any law of congress qualifying or limiting the liability of marshals, they are governed in these matters, as to the rights of third persons,by the law of the. state where they are located and doing business. The transaction in suit took place in Illinois, and the law of that state will the rights of the parties; and, Illinois having at an early day in its history adopted the common law of England, that law will govern, unless there is some statutory law or regulation, either of the state or of congress, (of which I know none,) to change it. Undoubtedly congress might limit or change the liability of marshals, but until it does so the state law will govern. Defendant's counsel has cited the case of Randolph v. Donaldson, 9 Cranch. 84, and seems to rely upon it as an authority to show that the common-law rule is not applicable to marshals. But that case is not an authority for the defendant. Congress had recommended the states to allow United States prisoners to be committed to state jails, and the state of Virginia had so provided. In accordance with these provisions the marshal had committed a debtor inexecution to the keeper of a staLe jail. That case decides that where a debtor taken in execution was delivered by the marshal into custody in a state jail, and put in charge of the keeper of the jail, and escaped from such keeper without the fault of the marshal, the marshal was not liable. The a!Jt of congress limited the responsibility of the marshal to his own acts nnd the acts of his deputies. The keeper of the jail Was neither in fact nor in law the deputy of the marshal. He was a county officer, not appointed by the marshal, nor in any way responsible to him, nor removable at his will. When a debtor was regularly committed .to a state jail by the marshal, in the custody of the marshal, nor controllable by him. he was no Therefore the marshal was not liable fOJ: the default of the jailer. There is a clear implication running all through the case that, if the prisoner had escaped through the fault of the marshal or his deputy, the mp.rshal

bring

SERVIS !1. MARSH.

797

would have been liable, and the judgment of the circuit court affirmed. In the case at bar, the prisoner went at large by consent of the deputymarshal who had him in custody. The marshal gives his bond for the faithful discharge of the duties of his office, and is as much responsible for the acts of his deputy as for his own acts. The deputy gives bond to the marshal, and is to him alone responsible. The public look to the marshal for indemnity, and know nothing of his deputies. The defendant's counsel rely in liome degree upon the defense set up by plea that after the prisoners were permitted to go at large they voluntarily surrendered themselves up to the deputy, al1d were again confined in jail, and their keeping paid for by the plaintiff. This appears to be the fact, but it also appears that their escape was unknown to the plaintiff. Under these circumstances the facts do not constitute a defense. All the authorities cited on the point by defendant relate to cases where the escape was negligent, and not vbluntary. No doubt. when the escape is not voluntary,---,that is, where it is without the knowledge, consent, or fault of the officer,-there may be it recapture when fresh pursuit is made, and such recapture may be pleaded in an action for the debt. But this was never the rule in cases where the officer permitted the prisoner to go at large. In such cases he cannot recapture, and, if he do, that will not affect his liability for the execution debt. In fact, by such recapture he makes himself liable to an action for false imprisonment, and the prisoner will be discharged on habeas corpus. In these cases it is held that not even a fire or a mob or anything less than the act of God or the public enemies, will avail to excuse the officer. Such seems to be the settled doctrine to this day in England, and generally in this country, wherever the common law prevails, and whether this was the original rule of the common law before the statutes of 13 Edw. 1., c. 11, (Westminster II., c. 11,) and 1 Rich. II., c. 12, were enacted, or whether these statutes introduced the rule, it is quite unnecessary to inquire. The rule is one of public policy, and has been deemed necessary to insure good faith and diligence. on the part of sheriffs and marshals. It may seem ill such a case as this, where there has been no personal fault attaching to the marshal, to be a stringent rule. But the answer to such a suggestion is that the act of the deputy is the act of the marshal, and the marshal must do his duty. There should be a judgment for the plaintiff for the amount of the execution debt and costs. with interest at 6 per cent. from the day of the escape. See Hawkim v. Plomer, 2 W· . Bl. 1048; Als&pt v. E,yles,. 2 H. Bl. 108; Bonafous v. Walker, 2 Term R. 126; EUiott v. Duke of Norfolk, 4 Term. R. 789; 2 Phil. Ev. 397; Southcote's Case, 4 Coke, 84b; Fairchild v. Case, 24 Wend. 381; Raine:y v. Dunning, 2 Murph. 386; Patten v. Halsted, 1 N. J. Law, 277; Adams v. Turrentine, 8 Ired. 147; Statev. Halford, 6 Rich. Law, 58; Seymourv. Har,. vey, 8 Conn. 70; Bowen v. Huntington, 3 Conn. 423; Clapp v. Hayward, 15 Mass. 276; Cau v. Hagger, 8 Mass. 429; Hopki'nsDn v. Leeds, 78 Pa. St. 396; Powers v. Wilson,7 Cow. 274; 'Riley v. Whittiker, 49 N. H. 145; Sherburnv. Beattie. 16 N. H. 437; Filewood v. Clement, 6 Dow!. 508; Btttfer v. Washburn, 25 N. H. 251; Phil. Ev. pt. c. 3, p. 398.

798

FEDERAL REPO&TER,vol.

38·

. r"

BANK AT HAMBURG V. FLYNN

etal.

(Oircuit Oourt,

n.

MaB8aehuBettB. Mar 'I, 1889.

1.

A bill to recover the proceeds of certain notes alleged that snch notes were stolen from complainant, a banking corporation in Germany, by one William O. Flynn; that he purchased drafts with the note.s of B. S. & Co., and gave them to defendants.. his brother and sister.. There was evidence of Flynn's , identity by tht bank officers. by employes of an hotel in Germany. where he stayed, by B. S. & Co.'s cashier, by photographs, and by a police inspector, who, had known Flynn for years. The of. a: court in Germany of the conviction of one" William Flynn" for this larceny was also in evidence. Held, that it sufficiently appeared that William C. Flynn, defendants' brother, took part in the larceny, and that he bought the drafts in controversy with the notes stolen.
DRAFTS-BoNA FIDE HOLDER. ,

EVIDENCE-IDENTIFICATION OF PERSON.

2.

4.

Where it appears that defendants were surprised to receive the drafts, and suspected something wrong about them; that they said to an officer that their brother had previously callsed them a good deal of disgrace. and that the , brother's letters accompanyinp;. the drafts were suspicious in character,-defendants cannot be held bonafide holders of the drafts. 8. BAHE. . Nor can it be said that the brokers of whom the drafts were bought, or those on whom they were drawn. are bona fide holders, so as to give defendants a good title, where it appears that the drafts had never been paid.EYIDENCE:':'-RECORD OF FOREIGN COURT.

The record ,of the German court Is admissible to show Flynn's conviction, bnt not to prove the facts on which it was based.

In Equity. Bill to recover possession of certain personal property. George P. Sanger, for complainant·. Horatio E.Swasey, for defendants. COLT,J. By this bill the complainant, a banking corporation located at Hamburg, Germany, seeks to recover possession of the proceeos of certain mark notes which were stolen from the bank on June 22, 1885. The bill alleges that the larceny was committed by three- persons, one of whom wasWilliam C. Flynn, formerly of Boston, the brother of the defendants, Catherine J. Flynn and John M. Flynn; ,that WilHam C. Flynn, on July 10,1885, with a part of the proceeds of said larceny, bought two sight drafts from Brown, Shipley & Co., bankers, London, upon Brown Bros. & Co., Boston,-one for $3,000, payable to the defendant CatherineJ. Flynn; and the other for $250, payable to the defendant John M. Flynn. The bill further alleges that William C. Flynn sent the drafts to his, brother and. sister as a gift, and that they are holders thereof without value. ' The prayer of the bill, as amended, is that the drafts, now in the custody of the dark of this court, be canceled and destroyed, and that Brown Bros. & Co. pay to the complainant the amount of the purchase money received for said drafts,to-wit, $3,250. The firm of Brown Bros. &.Co. are made parties ,to the bill. The defendants Flynn, in their answer, deny any personal knowledge, of the alleged robbery, except upon ;informatien and belief. They admit the receipt of the drafts,